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While always a gamble, when a provider is faced with the prospect of losing their Medicare privileges based on allegations of fraud, waste or abuse, filing for a Temporary Restraining Order (TRO) against the government to halt termination may pay substantial dividends.

Recently, Frier Levitt was retained by a large laboratory that had received notice from the Centers for Medicare & Medicaid Services (CMS) that its Medicare billing privileges would be revoked in thirty-days’ time. The notice justified the revocation on the basis that CMS had determined that the lab had engaged in a pattern or practice of submitting claims that fail to meet Medicare requirements, in violation of 42 C.F.R. 424.535(a)(8)(ii). Incredibly, CMS alleged that this “pattern or practice” could be gleaned from less than 10 claims – 10 claims out of tens of thousands of others that had been submitted to Medicare without issue. As time was short and loss of Medicare privileges would likely force the lab to shutter its doors, Frier Levitt filed a TRO in federal court against CMS, seeking to enjoin the agency from revoking the lab’s privileges, on the grounds that the (less than) 10 claims were not, in fact, discrepant and that the lab had been denied sufficient procedural due process under the Constitution. We advised the client that the odds of obtaining a TRO against the government were slim and carefully weighed the risks and rewards of filing it.

The court denied the TRO but, noting merit in our underlying claims, converted our motion for a TRO into an expedited hearing for a preliminary injunction – effectively an order that would reverse and freeze the Medicare termination (which was to occur in days) pending the resolution of the case’s merits. We then filed a brief in support of the preliminary injunction and, approximately 24 hours later, received a call from the United States Attorney’s Office (who was serving as counsel for the government), advising us that CMS was rescinding its termination of the lab’s Medicare billing privileges. Legally, this meant it was as though the lab had never been terminated in the first instance. It was a fantastic result for the client.

While by no means illustrative of what normally occurs under such circumstances, the above case study highlights the importance of consulting with counsel about the risks and rewards of seeking emergent judicial relief when threatened with revocation of your Medicare privileges, an asset of incalculable value for any provider. Contact Frier Levitt today to speak to an attorney.

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